The order in which loan debt is written off. Repayment of the principal debt on the loan Sequence of repayment of loan debt

Repayment of the principal debt. Repayment of penalties accrued in connection with late repayment of the principal debt. The order of debt repayment.

Question: Is it possible to pay towards the repayment of the principal debt, partially repay the penalty previously accrued in connection with the untimely repayment of the principal debt?

Answer:
The order of repayment of the loan, according to the Civil Code of the Russian Federation:

1) the creditor’s costs for obtaining execution;

2) interest;

3) principal amount of debt.

These rules are relevant if:

• the payment amount is not enough to fulfill the monetary obligation in full;
• the parties have not agreed to a different rule.

At the same time, this article deals with interest for the use of funds, which are payable under a monetary obligation.

Considering the above, when paying off a debt, you will first pay all costs, then interest, and only then the principal.

Rationale

The procedure for fulfilling a monetary obligation: how to ensure timely receipt of money

Fulfillment of a monetary obligation in parts. The order of repayment of claims

Obligations, including monetary ones, must be fulfilled in full accordance with the terms of the concluded agreement. This means that if the monetary obligation itself does not provide for the possibility of its partial fulfillment, then it must be fulfilled in full.

However, in real life there are numerous cases when the debtor is unable to fulfill his monetary obligation to the creditor in full and is forced to repay the existing debt in parts. In this case, interest will be charged on the resulting debt. In addition, the contract itself may provide for a penalty for late fulfillment of an obligation. How to qualify the next payment from the debtor in such a situation? Does it reduce the principal amount owed? Or are interest and penalties paid first?

If the amount of the payment made is not sufficient to fully repay the monetary obligation, the procedure for repaying claims is as follows.

First of all, the creditor's costs for obtaining a loan are repaid - payments that the creditor is obliged to make in connection with the forced implementation of his claim against the debtor (for example, the amount of state duty paid when going to court).

Secondly, interest for the use of funds payable on a monetary obligation is repaid (for example, interest for the use of the amount of a loan, credit, advance, prepayment, legal interest).

Attention: Previously, the amount of the principal debt is repaid only for those interests that do not relate to liability measures

Interest repaid earlier than the principal amount means interest on the use of funds that are paid under the agreement. In particular, interest on the use of the amount of a loan, credit, advance, prepayment, legal interest, etc. In other words, this is interest on the use of money (credit), which is not considered measures of liability for violation of the contract.

Thirdly, the principal amount is repaid.

This procedure for repaying a monetary obligation is established in the Civil Code of the Russian Federation. This procedure can be changed by agreement of the parties. For example, in the agreement the parties may provide that if the payment is insufficient to fully repay all monetary claims, the principal amount will be repaid first, and then the interest. However, the agreement can change the order of repayment only in relation to the lender's costs of obtaining a loan, a commercial loan and the principal debt. Overdue interest is always paid after the principal debt. Such rules are contained in paragraph 37 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 54.

Situation: Is it possible to stipulate in the contract a condition that if payment is insufficient, the debt for the penalty is repaid before the claims on the main obligation are repaid

In addition, creditors of the same debtor for homogeneous obligations may enter into an agreement on the procedure for satisfying their claims against the debtor, including the priority of their satisfaction and the disproportionate distribution of execution. At the same time, the parties to such an agreement are obliged not to take actions that are aimed at obtaining performance from the debtor in violation of the terms of the agreement. Such rules are established in paragraph 1 of Article 309.1 of the Civil Code of the Russian Federation.

At the same time, the creditor must keep in mind that the creditors’ agreement on the procedure for satisfying their claims against the debtor does not create obligations for the debtor himself, since he is not a party to such an agreement (). This means that he has the right to fulfill his obligations to creditors in the manner established in the relevant agreements.

However, the performance that one of the creditors received from the debtor in violation of the terms of the agreement on the procedure for satisfying claims against the debtor must be transferred to another creditor in accordance with the terms of the concluded agreement. The creditor who transferred the performance received from the debtor to another creditor passes the latter’s claim against the debtor in the corresponding part. Such rules are established in paragraph 2

In the presented question, the authorized bodies and the credit institution pay attention to the legislative standards and acts prescribed in the Civil Code of the Russian Federation of November 30, 1994 N51-FZ and the Federal Law “On Consumer Credit” of December 21, 2013 No. 353-FZ. In this case, the basis is the following articles:

• 319 of the Civil Code of the Russian Federation - determines the sequence of payment of losses incurred by the organization due to non-compliance with consumer obligations;
• 395 of the Civil Code of the Russian Federation - prescribes the basis and rules for calculating fines, including fixing the maximum values ​​for calculating penalties against the debtor;
• 809 of the Civil Code of the Russian Federation - determines the amount of loan debt: if the bank violated the presented norm of the law, the debtor, through the court, can invalidate the loan agreement and withdraw all charges regarding late repayment of the loan;
• Article 20 of the Law on Consumer Credit - the order of repayment of accrued fines and interest on accumulated debt is presented.

Failure to comply with the presented legislative acts calls violators to responsibility. In this case, it is necessary to highlight violations of the law by financial and credit organizations. Often they do not take into account the restrictions and indicate their data and requirements in the contract.

In case of litigation, the court may take the side of the creditor even if there are violations in the contract. This is explained by the regulations of Article 421 of the Civil Code of the Russian Federation, which provides for the same - there is a clarification “unless the contract says otherwise.” Therefore, it is necessary to take into account the conditions specified in the loan agreement first of all.

The procedure for repaying credit debt

In accordance with Article 319 of the Civil Code of the Russian Federation, the following sequence of debt repayment is distinguished:

1. First of all, all possible costs incurred upon the fact of the loan being issued by the borrower are repaid.
2. Next, the accrued interest on the loan is repaid, calculated from the beginning of the current period for repaying the loan.
3. Only after the above-mentioned debt has been repaid, the funds paid will be used to pay off the principal debt.
4. The last thing to do is to pay off penalties in the form of fines and penalties.

Often, debtors confuse two types of accruals that were formed as a result of late loan payments. Borrowers accept payment of costs as payment of fines and penalties.

In fact, this shouldn’t happen, but financial institutions often take advantage of borrowers’ ignorance of the legal framework and write their own sequence of debt repayment into the loan agreement. The presented actions must be declared invalid through the court at the initiative of the borrower.

Unlawful actions include priority payment of fines and penalties, which are accrued immediately upon the occurrence of a delay in monthly payment. In this case, you should go to court, since in accordance with Article 319 of the Civil Code of the Russian Federation, the order can be modified - for example, under certain circumstances, loan interest payments can be canceled. Fines and penalties remain unchanged at the end of the priority list.

He will tell you how to get rid of a loan using legal methods.

The order of payment of principal and interest on it

If a situation arises where there is a possible delay, it is recommended to contact the bank to resolve the issue amicably - in this case they may offer debt prolongation, refinancing or restructuring.

Such actions will help to avoid accrued interest on the loan, which is not currently being paid on time and provokes the calculation of significant penalties for payment by the borrower.

Otherwise, you will have to face paying all the charges. This raises the question of the order of repayment of interest and principal. Based on the agreement, the bank will first repay the accrued interest, and only then will move on to the amount of the principal debt.

You can also argue with this by going to court to write off the loan interest. He can be written off if the judge determines that the consequences are disproportionate to the violated circumstances.

When determining proportionality, the judge pays attention to the following financial indicators:

• inflation indicators in the country;
• the cost of medicines and food;
• minimum wage sizes and so on.

You should not count on the judge accepting the plaintiff’s side, since these are complex mathematical calculations and can only be carried out by an independent credit expert.

As for the possibility of refusing to pay a fine, one should be guided by Article 333 of the Civil Code of the Russian Federation. The article applies in cases where the debtor intends to repay the principal part of the loan in full. To do this, you need to submit a corresponding application addressed to the head of the bank, in which you indicate the intention and request to remove accrued penalties from the debt amount in accordance with the specified regulatory act. In other cases, issues are resolved through court.

Lender's costs for executing the loan

Lender costs are an item of bank expenses that are repaid first under any circumstances. Based on Letter No. 141, the Presidium of the Supreme Arbitration Court of the Russian Federation decided that the amount of costs will include the following types of costs:

• All the costs incurred by the bank when issuing a loan - this assumes additional services provided to the potential borrower. As a rule, they are added to the amount of the principal debt. If a debt arises, the bank has the right, first of all, to use the paid funds to pay for the services provided.
• Expenses aimed at legal proceedings - payment of state fees for filing a statement of claim, consultations and services of a lawyer or lawyer.
• Amounts of money that were spent by the bank on the sale of property pledged by the debtor - in most cases, this includes expenses aimed at paying fees for an auction held in a locality.

The bank has the right to include in the amount of costs expenses aimed at attracting the services of collection agencies.

In most cases, banks spend their own funds on litigation and auctions, where they put up for auction the property purchased by the debtor with a mortgage. In this case, there may be several auctions, which is influenced by the demand for real estate in the region.

Payments ahead of schedule

Partial and early repayment of the loan significantly saves the borrower’s money. Below we will consider these options, taking into account the nuances and legal rules.

Full repayment

Full repayment has significant advantages: you can not only reduce the amount of loan interest, but also save yourself from paying penalties based on the law. But you will have to pay interest in accordance with Federal Law No. 353 “On Consumer Credit”. Loan interest accrues only until the day the loan is fully repaid.

To do this, you should write an application to the bank with a request to calculate the repayment amount along with loan interest on a certain date. On this day, the borrower must deposit the calculated funds into the consumer loan account. Accrual of interest for the entire loan term is an unlawful action on the part of the bank, which leads to administrative liability.

Partial repayment

When partially repaying a loan for which debt has arisen, the borrower must take into account the following circumstances:

• The deposited amount will be distributed in accordance with the above order: first the costs are paid, then the accrued interest and only finally the money will go towards the principal debt.
• If the payment of fines is provided for in the agreement and in the event of a trial the bank has not made changes (fines can be assessed for systematic delays committed by the borrower), the remaining amount after payment of the principal debt (calculated at the time of crediting the funds) will be used to pay the fine.
• In order for partial repayment to take place in a timely manner, it is necessary to write an application addressed to the head of the bank with a request to write off debts on the next day of crediting a certain amount of funds - only in this way will funds credited in excess of what is required be spent to pay off the principal debt.
• It is important to take into account the features of the subsequent calculation: the amount credited to the principal debt may reduce the size of the monthly payment or reduce the loan repayment period. Often the bank provides a choice of what is specified in the contract - you need to correctly calculate your benefit.

Few people know, but most of the debt on a consumer loan is formed when the amount issued by the bank is refused to be used. The law on consumer loans states that the borrower has the right to return the money within 2 weeks after it is provided without paying any costs - commission for transferring funds or accrued loan interest. Repayment of borrowed funds occurs upon application addressed to the head of the bank.

There is a legally established procedure for repaying loan debt. However, banks can make their own adjustments to the contracts drawn up, so when signing them, you should carefully read the contents of the documentation in order to avoid further misunderstandings and material damage to the debtor.

• Loan agreement and terms of use
• Credit card
• Loan payments
• Payment methods and times
• Monetary obligations

Nowadays, getting a loan is becoming the norm for many people. The reasons for this can be varied, from purchasing an inexpensive product to a large purchase in the form of a car or apartment. The priority and procedure for repaying debt on a loan taken for any needs is established by the bank at the time of concluding the loan agreement and receiving cash or goods. Loan agreement and terms of use The concluded loan agreement between the financial organization and the borrower establishes a contractual relationship that stipulates the procedure for repaying the loan debt.

Sequence of debt repayment

Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 13/14 dated October 8, 1998, when applying the rules on the order of repayment of claims on a monetary obligation in the event of insufficient amount of the payment made (Article 319 of the Civil Code of the Russian Federation), one should proceed from the fact that at interest repaid earlier than the principal amount of debt, refers to interest on the use of funds payable on a monetary obligation, in particular interest on the use of the amount of a loan, credit, advance, prepayment, etc. Interest provided for in Article 395 of the Civil Code of the Russian Federation for non-fulfillment or delay in fulfilling a monetary obligation, and others, are repaid after the amount of the principal debt.

The order of repayment of claims (Article 319 of the Civil Code of the Russian Federation). arbitrage practice

At least once a month, the accountant sends a memo to the lending department about repaid loans (list) indicating personal accounts and borrowers. The loan officer, based on the accounting note, draws up a request for the withdrawal of loan documents from the cash operations department, signed by the head of the bank or other authorized person. After transferring packages of documents in the established order from the storage facility to the lending department, the credit officer: - staples packages with loan files and prepares them for transfer to the archive; - enters information about loan repayments into the database; - makes a note about closing the account in the loan agreements registration journal .

Announcement

The bank provides a deferment for the next payment in exceptional cases when a bank client experiences temporary financial difficulties. In such cases, an additional agreement to the main one may be drawn up, which stipulates new conditions. In this additional agreement, the credit institution may revise the interest rate upward.

Return to contents Methods and time of making payments The procedure for returning the amount received from the bank can be carried out in two ways: independently and automatically. With automated debt repayment, money is transferred without the participation of the debtor. In this case, it is necessary to write an application to the organization’s accounting department to transfer a certain amount of salary to the bank to a credit account so that the order of repayment of debts is not interrupted.

Loan and its return

At the same time, the plaintiff asked to foreclose on the apartment in order to fulfill the terms of the loan agreement... In support of their objections, the defendants pointed out that the plaintiff was illegally counting the amounts they transferred towards repayment of the loan, primarily to pay off interest for violating the deadline for fulfilling obligations, and the remaining amounts in principal account. However, the St. Petersburg City Court rejected the defendants' arguments.
The court pointed out that the terms of the loan agreement established the order of repayment of claims under the monetary obligation.

The procedure for repaying consumer loan debt may change

The Borrower's amounts, regardless of the purpose of the payment specified in the payment document, are sent by the Bank to repay the debt under the Loan Agreement in the following priority: - first of all - to pay off the Bank's costs for obtaining execution (if there are such costs); - secondly - for the repayment of any penalties (fines, penalties); - in the third place - for the repayment of overdue debt for the payment of interest; - in the fourth place - for the repayment of interest for using the loan accrued on the overdue loan debt; - in the fifth place - for the repayment overdue debt to repay the loan; - sixthly - to pay interest for using the loan; - seventhly - to repay the loan. The court, citing Article 319 of the Civil Code of the Russian Federation, indicated that clause 4.8 of the Loan Agreement, which determines the procedure for repaying the debt, in force of Art.

Procedure for repaying credit card debt

The Civil Code of the Russian Federation is recognized by the court as void and cannot be applied. (Decision of the Oktyabrsky District Court of Izhevsk dated August 31, 2009) Other examples from judicial practice: When resolving a bank’s claim for the recovery of sums of money under a loan agreement, the court is obliged to check the defendant’s arguments about the bank’s violation of the order of repayment of claims under a monetary obligation when the amount of the payment made is insufficient . When considering the case on the Bank's claim for the recovery of payments from a citizen under a loan agreement and foreclosure on the mortgaged property, the defendant, objecting to the claim, referred to the bank's violation of the order of repayment of claims when the amount of the payment made was insufficient, which, in his opinion, led to an overstatement of the amount of the debt .

The procedure for repaying the loan and paying interest

An information letter on the procedure for writing off debt in the event of partial repayment of a monetary obligation has been published on the website of the Supreme Arbitration Court of the Russian Federation, which essentially deprives the parties of the opportunity to determine a different (contractual, by agreement of the parties) procedure for writing off the debt. HIGH ARBITRATION COURT OF THE RUSSIAN FEDERATIONPresidium of the Supreme Arbitration Court of the Russian FederationINFORMATION LETTER Moscow No. 141 October 20, 2010 On some issues of application of the provisions of Article 319 of the Civil Code of the Russian Federation In connection with issues arising in the application of the provisions of Article 319 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) , Code), the Presidium of the Supreme Arbitration Court of the Russian Federation informs arbitration courts about the following recommendations developed: 1.

The order of loan repayment

This can happen if:

• the onset of an emergency (natural and man-made disasters);
• declaring the debtor bankrupt;
• lack of interest of the bank in a specific client.

If there were no funds in the required amount on the credit card account at the time the debt was written off, and the client himself was in the disaster zone at that time and can confirm this, then, most likely, the bank will apply a special debt repayment procedure. In this case, the contract contains a special clause dedicated to interaction during emergency situations. Write-off of funds in the event that the debtor's credit card holder is declared bankrupt if he is unable to pay the full amount, also occurs according to another scheme, which is approved by the court or an additional agreement to the loan agreement (for example, in the case of debt restructuring).

Today, a bill was introduced into the State Duma, if adopted, the current procedure for repaying the amount of a consumer loan (loan) will be changed if it is insufficient to fully fulfill the borrower’s obligations. It is proposed to establish the following order of payment of debt: first of all, the debt on interest is repaid, then on the principal debt. They are followed by the interest accrued for the current payment period and the principal amount due for the current payment period. And only after paying other payments provided for by Russian legislation on consumer credit (loan) or the relevant agreement, it is possible to collect a penalty, fine or penalty.

Let us remind you that currently the sequence of debt payment is different (Part 20, Article 5 of the Federal Law of December 21, 2013 No. 353-FZ ""):

• interest debt;
• principal debt;
• penalty (fine, penalty);
• interest accrued for the current payment period;
• the amount of the principal debt for the current payment period;
• other payments provided for by the legislation of the Russian Federation on consumer credit (loan) or the consumer credit (loan) agreement.

In other words, if the initiative is approved, the penalty, fine or penalty will be paid last, whereas today they are collected after the debt on interest and principal.

How should a change in the interest rate under a loan agreement be formalized? ? Find out from the material " Loan interest rate" in "Home Legal Encyclopedia" Internet version of the GARANT system. Get full access for 3 days for free!

Author of the initiative, State Duma deputy Vasily Shvetsov, citing expert opinions, considers the new debt payment procedure he proposes to be fairer. According to his data (based on statistical studies of the United Credit Bureau), in 2015, overdue loans in Russia amounted to approximately 1.1 trillion rubles, which is 48% more than in 2014. In this regard, according to the parliamentarian, there is an urgent need to change the Russian lending system.

He emphasized that changing the order of debt repayment will allow, firstly, to protect the rights of borrowers, and secondly, to limit the arbitrariness of banks. In addition, according to the deputy, the new provision will not entail any costs or consequences for creditors, but will only change the order of repayment of the debt amount.

In connection with issues arising in the application of the provisions of this article, the Presidium of the Supreme Arbitration Court of the Russian Federation on October 20, 2010 issued Information Letter No. 141 “On some issues of application of the provisions of Article 319 of the Civil Code of the Russian Federation” (hereinafter referred to as Letter No. 141), in which informed the arbitration courts about the recommendations developed.

The publication of this letter was the result of a generalization of the existing judicial practice on the issues of repayment of monetary obligations in the event of an insufficient payment amount. The Presidium of the Supreme Arbitration Court of the Russian Federation, in particular, provided clarification on such important issues for banks:

— on the order of collection of sanctions for violation of monetary obligations;

- on the possibility of changing the order of repayment of a monetary obligation in comparison with the procedure established by Art. 319 of the Civil Code of the Russian Federation.

Collection of interest on a monetary obligation

The main problem associated with the application of Art. 319 of the Civil Code of the Russian Federation, is that the legislator used the word “interest” without specifying exactly what percentage we are talking about. The fact is that, firstly, interest can be understood as interest paid for the use of borrowed funds; secondly, interest is also referred to as interest paid as a sanction for failure to fulfill a monetary obligation in the manner established by Art. 395 Civil Code of the Russian Federation; Finally, there is a penalty, which is also expressed as a percentage.

This ambiguity could not but affect the practical activities of banks. Often, creditors counted the funds received from debtors against the due penalty or interest for the unlawful use of other people's funds, but not against the principal amount of the debt.

The Supreme Arbitration Court of the Russian Federation has repeatedly tried to eliminate the ambiguity of the provisions of the Civil Code of the Russian Federation, consistently canceling judicial acts in which such actions of creditors were recognized as lawful. Moreover, the result of the generalization of such judicial practice was the joint Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 No. 13/14 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds,” in paragraph 11 which contains the following indication: at interest repaid earlier than the principal amount of the debt, in Art. 319 of the Civil Code of the Russian Federation refers to interest on the use of funds payable on a monetary obligation, in particular interest on the use of the amount of a loan, credit, advance, prepayment, etc. In subsequent practice, the Supreme Arbitration Court of the Russian Federation also repeatedly returned to this problem and explained that Art. 319 of the Civil Code of the Russian Federation does not regulate the receipt of interest for the unlawful use of funds 1.

In Letter No. 141, the Presidium of the Supreme Arbitration Court of the Russian Federation once again returned to this problem, pointing out that the interest established by Art. 319 of the Civil Code of the Russian Federation, differ from interest for the unlawful use of funds (Article 395 of the Civil Code of the Russian Federation). To interest under Art. 395 of the Civil Code of the Russian Federation, rules regarding the order of fulfillment of obligations cannot be applied, since such interest is an independent measure of liability and has a different legal nature, different from the nature of loan interest (Article 809 of the Civil Code of the Russian Federation). At the same time, judicial practice confirms that interest, which is a payment for a commercial loan, refers to the interest specified in Art. 319 Civil Code of the Russian Federation 2 ..

Prohibition on the collection of penalties bypassing the repayment of the principal debt

Until now, the question of the order of collection of the penalty remained open. upon repayment of a monetary obligation. Let us recall that not so long ago the Presidium of the Supreme Arbitration Court of the Russian Federation recognized that it is not contrary to the law and does not infringe upon the rights of consumers for the borrower to pay a penalty for failure to fulfill obligations under a loan agreement 4 ..

However, in practice, the problem of the penalty often turned out to be associated not with the very fact of its collection by the bank, but with the fact that banks wrote it off as a matter of priority when the next payment was received from the borrower (if it was insufficient to fulfill the monetary obligation in full), for example, if it was paid with a schedule violation. And only then were the interest and principal repaid. It was these actions that raised doubts among bank clients about their legality.

The fact is that the provisions of Art. 319 of the Civil Code of the Russian Federation are dispositive in nature. This means that they can be changed by agreement of the parties. An analysis of judicial practice showed that the result of the implementation of the dispositive principle was the widespread use of the following contractual technique: the parties to the contract began to change the order of repayment of monetary claims, in particular, to include in the contract a condition that the debtor’s payment is primarily aimed at repaying the penalty and penalty interest, and then - interest for the use of money and the principal amount of the debt. Often these conditions were included by banks in loan agreements.

The Presidium of the Supreme Arbitration Court of the Russian Federation put an end to this issue, indicating in Letter No. 141 that Art. 319 of the Civil Code of the Russian Federation does not regulate relations related to holding the debtor liable for violation of an obligation, but determines the procedure for fulfilling the monetary obligation that the debtor assumed when concluding the contract. Therefore, by agreement of the parties to the loan agreement, the procedure for repaying only those claims that are listed in Art. 319 of the Civil Code of the Russian Federation. For example, the parties have the right to establish that in the event of insufficient payment, the debtor's obligation to pay interest is extinguished after the principal amount of the debt.

At the same time, the agreement of the parties that if the debtor fulfills the monetary obligation not in full, the requirement to pay the penalty, interest, provided for in Art. 395 of the Civil Code of the Russian Federation, or other claims related to the violation of obligations are paid earlier than the claims named in Art. 319 of the Civil Code of the Russian Federation, contradicts the meaning of this article and is void on the basis of Art. 168 Civil Code of the Russian Federation 5. (Clause 2 of Letter No. 141).

Thus, the question that remained controversial for a long time regarding the legality of including such conditions in contracts concluded in most cases under pressure from the creditor has been resolved. Thus, some courts refused to recognize their illegality, pointing out that the norm of Art. 319 of the Civil Code of the Russian Federation is dispositive, and by virtue of Art. 421 of the Civil Code of the Russian Federation, the parties are free to enter into an agreement and choose contractual terms. This position can be most clearly seen in the judicial acts of the FAS of the Moscow District and the FAS of the North-Western District 6..

Additionally, the Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 2 of Letter No. 141 explained that the creditor’s demands for payment of a penalty, interest for the unlawful use of other people’s funds, and other monetary claims related to the application of civil liability measures can be voluntarily satisfied by the debtor at his discretion as before and after satisfaction of the creditor's claims specified in Art. 319 of the Civil Code of the Russian Federation. However, the creditor retains the right, until the principal amount of the debt is repaid, to file a claim in court to collect from the debtor a penalty or interest for the use of someone else's money.

Thus, the debtor has the right to pay off demands for payment of penalties at any time voluntarily, and the creditor has the right to demand them through the court and before paying the principal debt.

OPINION
K.R. Movsumov, URALSIB OJSC, Moscow Regional Directorate, Deputy Head of the Directorate for Accounting and Organization of the Return of Troubled Assets
It is gratifying that from time to time the Supreme Arbitration Court of the Russian Federation pleases us with its clarifications, since the current practice of interpreting articles of the Civil Code of the Russian Federation is by no means perfect. This information letter will, of course, play a positive role in bilateral relations between lenders and borrowers. An unconditional positive factor is the ability to reduce the growth rate of problem debt. Thus, payments previously credited to repay penalties (and (or) increased interest) for overdue debt, without thereby reducing the principal debt, will now most likely be used to repay the principal debt. Consequently, we can expect counterclaims from borrowers demanding a recalculation of the debt based on the repayment of, first of all, the amounts of interest for using the loan and the principal debt.
The final decision on the order of repayment (recognition) of penalties, in my opinion, remains with the courts: they will evaluate such factors as the terms of the loan agreement, the purpose of payments, the amounts sent towards repayment, and the amount of accrued penalties for overdue debt.

As for the current practice of including in contracts a provision for repaying, first of all, penalties for overdue debt, I consider this rather a way of psychologically influencing existing borrowers and debtors who have insignificant (in terms of amount and terms) arrears. This will not affect work with “inveterate” debtors in any way, since court decisions often already define specific amounts of debt item by item.

Unilateral change in the order of repayment of a monetary obligation

The issue of the inadmissibility of changing the order of repayment of a monetary obligation established by Art. 319 of the Civil Code of the Russian Federation, unilaterally by any of the parties to the agreement.

The Presidium of the Supreme Arbitration Court of the Russian Federation in this part emphasizes that this rule is aimed at protecting the interests of the creditor, and therefore the indication by the debtor in the payment document of the purpose of the amount paid by him (for example, repayment of the principal amount of the debt under a loan agreement) in itself does not matter when determining the procedure repayment of his obligations to the creditor, which is carried out according to the rules of Art. 319 of the Civil Code of the Russian Federation (clause 1 of Letter No. 141). That is, the creditor must be guided exclusively by the provisions of the Civil Code of the Russian Federation and what the debtor indicated in the payment documents does not bind him in any way.

It should be noted that in this part the highest court supported the established judicial practice. Thus, in the resolution of the FAS of the East Siberian District dated 02/19/2009 No. A78-4803/08-F02-264/09 in case No. A78-4803/08, resolutions of the FAS of the North-Western District dated 02/11/2010 in case No. A52-1319 /2009, dated 02/11/2010 in case No. A52-1317/2009, the courts came to the conclusion that the parties do not have the right to agree on the possibility of changing the order of repayment of a monetary obligation unilaterally.

Indeed, Art. 319 of the Civil Code of the Russian Federation does not give the debtor the right to determine for the fulfillment of which requirement funds should be allocated. The unilateral indication by the debtor of the purpose of payment (even in conjunction with the acceptance by the creditor of such payment) cannot be qualified as an agreement of the parties, as referred to in Art. 319 of the Civil Code of the Russian Federation.

Let us pay attention to another point, aimed at protecting the interests of the debtor from a unilateral change in the procedure for repaying obligations. Paragraph 3 of Letter No. 141 states: if the creditor incorrectly applied the provisions of Art. 319 of the Civil Code of the Russian Federation, the debtor, in particular, has the right to raise appropriate objections when the court considers the creditor’s claim for the collection of funds for claims against the debtor (for example, for the claim for the collection of interest and principal amount of the debt).

Direct write-off of penalties

As is known, when concluding an agreement, the parties can establish that all payments, including the payment of penalties and other sums of money that are measures of liability for violation of the agreement, are carried out through payment requests without the prior acceptance of the payer (paragraph 4 of Chapter 46 of the Civil Code of the Russian Federation). Under this condition, the creditor (in our case, the bank) will have the right to write off funds from the debtor’s current account without acceptance.

However, such a procedure for writing off funds from the debtor’s account does not deprive him of the right to demand the return of an overpaid penalty. If the court determines that the amount of the written off penalty is disproportionate to the consequences of violating the obligation under the loan agreement or there are no grounds for holding the debtor accountable at all, the court may make a decision to return the overpaid penalty or to recognize the debtor’s obligations to the creditor as fully or partially extinguished. payment of the principal amount of the debt and interest, if the plaintiff stated this (Article 333 and paragraph 2 of Article 330 of the Civil Code of the Russian Federation 7.).

The clarification given by the Presidium of the Supreme Arbitration Court of the Russian Federation in this part is of great importance due to the fact that previously in judicial practice there was a statement that the inclusion in the contract of a condition for the priority repayment of the penalty actually excludes the possibility of reducing the penalty provided for in Art. 333 of the Civil Code of the Russian Federation (see, for example, resolution of the Federal Antimonopoly Service of the East Siberian District dated August 26, 2002 No. A19-3307/02-10-F02-2396/02-S2, resolution of the Federal Antimonopoly Service of the West Siberian District dated May 27, 2010 in case No. A27-12589/2009, etc.).

Moreover, the Presidium of the Supreme Arbitration Court of the Russian Federation explained that in this case, interest for the use of other people's funds (Article 395 and paragraph 2 of Article 1107 of the Civil Code of the Russian Federation) is payable precisely from the date of entry into force of the court decision on the return of the overpaid penalty 8 .. And if the court finds that the penalty was written off by the creditor in a situation where he knew or should have known about the illegality of such actions (i.e. we are talking about unjust enrichment), - from the date of writing off the funds from the debtor’s account (clause 4 Letters No. 141).

Such measures are aimed at eliminating the abuse of direct write-off on the part of the creditor.

Collection of the creditor's costs for obtaining execution

Another problem raised by the Presidium of the Supreme Arbitration Court of the Russian Federation in Letter No. 141 concerns the creditor’s costs of obtaining fulfillment of a monetary obligation. In practice, it was not as pressing as the issue of the order of collection of penalties under the contract. However, it should be noted that the courts did not recognize legal expenses as costs of obtaining fulfillment of an obligation (see, for example, the decisions of the Federal Antimonopoly Service of the West Siberian District dated July 30, 2010 in case No. A46-23963/2009, the Federal Antimonopoly Service of the Northwestern District dated September 21. 1998 No. A56-7801/98).

Now the Presidium of the Supreme Arbitration Court of the Russian Federation has indicated that the creditor’s costs for obtaining execution, which are discussed in Art. 319 of the Civil Code of the Russian Federation, one should understand, for example, payments that the creditor is obliged to make in connection with the forced implementation of his claim against the debtor. Such payments, in particular, include the amount of state duty paid by the creditor (clause 1 of Letter No. 141).

Thus, we must assume that a change in the trends of judicial practice on this issue should be expected.

In conclusion, we note that the clarifications given by the Presidium of the Supreme Arbitration Court of the Russian Federation apply in all cases when the actions of the debtor or another person are aimed at fulfilling an obligation or terminating the debtor’s monetary obligation to the creditor in other ways, for example:

- upon termination of the obligation;

— when satisfying the creditor’s claims under an obligation secured by a pledge;

- when satisfying the creditor’s claims from the value of the pledged property, proceeds from selling the property at auction or selling it in another way (clause 5 of Letter No. 141).

1 - See, for example, resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 15, 2001 No. 8296/00, dated July 17, 2001 No. 164/01, determination of the Supreme Arbitration Court of the Russian Federation dated June 15, 2010 No. VAS-7887/10 in case No. A27-8855/2009 -1.

2 - See resolution of the Federal Antimonopoly Service of the Ural District dated October 5, 2009 No. Ф09-6595/09-С4 in case No. А60-835/2009-С1.

3 - According to Art. 330 of the Civil Code of the Russian Federation, a penalty is understood as a monetary fine that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in the case of delay in fulfillment.

4 - See Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 2, 2010 No. 7171/09 in case No. A40-10023/08-146-139, in which the Presidium of the Supreme Arbitration Court of the Russian Federation confirmed that the possibility of a bank charging a penalty as a sanction for late loan payments is not contradicts the Civil Code of the Russian Federation.

5 - According to Art. 168 of the Civil Code of the Russian Federation, a transaction that does not comply with the requirements of the law or other legal acts is void unless the law establishes that such a transaction is contestable or does not provide for other consequences of the violation.

6 - See, for example, resolutions of the Federal Antimonopoly Service of the Moscow District dated March 14, 2006 No. KG-A40/1273-06 and dated August 17, 2006 No. KG-A40/7335-06; Resolution of the Federal Antimonopoly Service of the North-Western District dated May 24, 2006 No. A56-24198/2005.

7 - According to Art. 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of violation of the obligation, the court has the right to reduce the penalty. Clause 2 of Art. 330 of the Civil Code of the Russian Federation states that the creditor has no right to demand payment of a penalty if the debtor is not responsible for non-fulfillment or improper fulfillment of the obligation.

8 - According to paragraph 2 of Art. 1107 of the Civil Code of the Russian Federation on the amount of unjust monetary enrichment, interest is subject to accrual for the use of someone else’s funds from the time when the acquirer learned or should have learned about the unjustification of receiving or saving funds.